OM PARKASH Vs. R K LAKRA

JUDGEMENT

(1.) This is an appeal against the judgment of a learned single Judge of the High Court of Jammu and Kashmir in a Second Appeal. The appellants are the heirs and legal representatives of one Indro Devi. The respondent is the heir and legal representative of one Raghunath Dass Lakra.

(2.) Very few facts are necessary for the disposal of the appeal before us. The dispute relates to a piece of land measuring 4 marlas and 99 sq. ft. situated at Residency Road in Jammu. This land was granted to one Attar Chand by the Government of Kashmir on a long lease. As per the practice prevailing in the State of Jammu and Kashmir he was known as the Wasidar in respect of the said land. On his death his son Guranditta Mal inherited the leasehold rights of Attar Chand and on the death of Guranditta Mal his widow Indro Devi, who was the original plaintiff, inherited the leasehold rights under the said lease on the basis of a Will executed by Guranditta Mal in her favour. Guranditta Mal, during his lifetime, in 1954, had granted a sub-lease of the said land to Raghunath, the father of the respondent herein. Indro Devi instituted a suit in the Court of the learned Sub-Judge, Jammu for recovery of possession of the said land on the ground that Raghunath Dass had sublet the house constructed by Raghunath Dass on the said land and was liable to be evicted under the provisions of the Transfer of Property Act read with S. 11 of the Jammu and Kashmir Houses and Shops Rent Control Act (hereinafter referred to as the "J and K Rent Act"). She also contended that the land was required by her bona fide for occupation by her and her family. The period of the said sub-lease had expired and it was alleged that in the aforesaid circumstances, the respondent was liable to be evicted.

(3.) These allegations were denied by the respondent. It was inter alia contended by the respondent that the sub-lease granted to Raghunath was void ab initio. It was held by the learned Sub-Judge that the ground of bona fide requirement of the landlord as well as unlawful subletting by the sub-lessee had been established. It was further held that the sub-lease granted by Guranditta Mal to Raghunath was valid. On these findings the suit was decreed. This decision was upheld on first appeal by the learned Additional District Judge, Jammu before whom an appeal was preferred and the findings of the learned Sub-Judge were upheld by him. On a Second Appeal preferred to the High Court the learned single Judge of the High Court took the view that the sub-lease granted by Guranditta Mal to Raghunath Dass was void as it violated the provisions of R. 35 of Wasidari Rules inas-much as it amounted to a transfer of immovable property and hence it amounted to a transfer of the land leased by the Government to the Wasidar under the provisions of the Wasidari Rules. As no permission of the Government was taken for granting the said sub-lease the sub-lease was void as against the provisions of the Wasidari Rules. The learned single Judge rejected the contention urged on behalf of the appellants herein that the transfer made by Guranditta Mal was of a mere interest in the leasehold and did not amount to a transfer of the land leased as contemplated under R. 35 of the said Wasidari Rules. The learned single Judge, without considering what would be the effect of the sub-lease being void has somehow come to the conclusion that, in view of the sub-lease being void, the suit filed by the appellants herein must be dismissed and took the view that the appeal before the learned Judge must be allowed and the suit filed by the appellants must be dismissed. It is this decision which is challenged by the appellants in the present Appeal preferred by Special Leave.